Connor v. Skagit Corp.

• Decision Date: 09 June 1983
• Docket Number: No. 48502-0,48502-0
• Citation: 99 Wn.2d 709,664 P.2d 1208
• Parties: Barry CONNOR and Jacqueline Connor, his wife, Petitioners, v. SKAGIT CORPORATION, and Bendix Corporation, Respondents.
• Court: Washington Supreme Court

Page 709

99 Wn.2d 709

664 P.2d 1208

Barry CONNOR and Jacqueline Connor, his wife, Petitioners, v. SKAGIT CORPORATION, and Bendix Corporation, Respondents.

No. 48502-0.

Supreme Court of Washington,

En Banc.

June 9, 1983.

Crane, Stamper, Boese & Dunham, Douglas S. Dunham, Seattle, for petitioners.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Philip A. Talmadge, Robert P. Piper, Seattle, for respondents.

PEARSON, Justice.

Plaintiff appeals a Court of Appeals decision affirming a jury verdict for defendants in a products liability action. The most substantial issue presented is whether in a strict products liability action based on a design defect the plaintiff has the burden of proving the existence of a feasible and safer alternative product design. We hold that, where the plaintiff has based his allegation of design defect solely upon the possibility of alternative designs, the burden of proving the existence of those design alternatives falls on the plaintiff. We affirm the trial court and Court of Appeals.

Plaintiff Barry Connor brought this products liability action against manufacturers of logging equipment, defendants Skagit Corporation, and Bendix Corporation. Plaintiff alleged he was injured as a result of the defective design of defendants' products. The trial resulted in a defense verdict, the Court of Appeals affirmed the trial court, and this court accepted review.

Plaintiff had more than 7 years' experience in logging in New Zealand, Canada, and the Pacific Northwest. At the time of the accident, he had been employed by Hammer Logging Company for about 6 weeks. On September 13, 1974, the day of the accident, Hammer Logging was removing felled logs from the woods using a T-90 logging tower and a Bu-80 yarder manufactured by defendants.

The tower and yarder are the two major pieces of equipment used to bring felled logs to a central location ("landing") in mountainous logging areas. The tower is a metal pole 90 feet tall from which cables extend to the woods to be hooked to felled logs. Felled trees are hooked to the cables by means of lengths of wire rope known as "chokers." The yarder is the machine containing the power source and drums upon which the cables coil and uncoil as they move to and from the tower. The logs are dragged to the landing site by the cables and are unhooked from the chokers by a worker known as a "chaser." The logs are then loaded onto trucks by a mechanical shovel.

When the yarder and tower are set up on a landing, the cab of the yarder is fixed in one direction, towards the front of the equipment. The tower is positioned in front of and slightly to one side of the cab.

The cable which hauls the logs into the landing is called the "mainline." It runs from the power drum on the yarder and up to the top of the tower. A system of pulleys and swivels at the top of the tower allows the mainline to be run to the felled logs in almost any direction, except directly behind the equipment. This means that the equipment does not have to be turned around (a task taking about 3 hours) when all the logs directly in front of the equipment have been hauled up to the landing. The mainline can be run to felled logs at any angle except for an arc of about 60 degrees directly behind the cab. In this arc, the cables scrub together creating a serious danger that one will break.

In logging terminology, when the cable from the tower to felled logs in the woods is within the half circle in front of the cab, the cable is in the "square lead." When the cable is in the half circle behind the cab, the cable is in the "diamond" or "V" lead. Operating in a diamond lead is more difficult for the operator of the yarder because he must observe the logs approaching by swiveling in his seat and looking over his shoulder. For this reason, it is common when all the logs have been removed from the square lead to turn the equipment around and set up another square lead, rather than continuing into the diamond lead. This is by no means an invariable practice, and logging in the diamond lead is not unusual.

At the time of the accident, this equipment was set up on a landing about 75 feet below the brow of a hill. Logs were being recovered in a diamond lead from a steep embankment below the landing and out of sight of the operator of the yarder until they crested the embankment. Moreover, because the logs were approaching the landing from behind the yarder, the operator was required to look back over his shoulder to see them. When they had set the chokers on the logs, the men working down the embankment in the woods blew three blasts on a whistle, signaling the yarder operator to engage the friction drive and bring the logs up to the landing. The only way the yarder operator could estimate the distance of the logs until they appeared over the bank was by estimating the length of cable coiled on the drum.

The accident occurred while plaintiff was working as a chaser on the landing. He climbed the ladder to the cab of the yarder to converse with the operator. After a brief conversation, they heard the whistles which signaled that the chokers had been set. Plaintiff said to the operator, "You better go ahead," and after 2 or 3 seconds the operator engaged the friction drive to bring in the logs. Plaintiff began to climb down from the cab, intending to get out of the way of the incoming logs. He was hit by a log which slammed against the cab as he attempted to climb down, amputating his left forearm just below the elbow. Plaintiff brought this suit alleging that the tower and yarder were defectively designed and that defendants were therefore strictly liable for his injuries. Defendants denied that the equipment was unreasonably dangerous, and argued that even if it were unreasonably dangerous, plaintiff assumed the risk of injury. The jury returned a general verdict for defendants. Plaintiff appealed, challenging several jury instructions, and the Court of Appeals affirmed. Connor v. Skagit Corp., 30 Wash.App. 725, 638 P.2d 115 (1981).

In his petition for review, plaintiff challenges only two of the jury instructions approved by the Court of Appeals: Instruction 12, which set out the plaintiff's burden of proof, and Instruction 14, which dealt with assumption of the risk.

Instruction 12 ¹ informs the jury that the plaintiff has the burden of proving three allegations in order to establish liability: first, that the equipment was by reason of a design defect dangerous beyond the reasonable expectations of users of the equipment; second, that the defective design was a proximate cause of plaintiff's injuries; and third, "that there was available to the defendants a feasible and practical alternate design which, more likely than not, would have prevented the accident which resulted in plaintiff's injuries." Plaintiff argues that this instruction increased his burden of proof by elevating the availability of feasible alternative design to an element of the cause of action. He argues that alternative design is merely one of a number of factors which the jury may consider in determining whether a product is unreasonably dangerous.

A manufacturer is liable under the theory of Restatement (Second) of Torts § 402A (1965) for injuries caused by an unreasonably dangerous product. Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969). This liability extends to a product rendered unreasonably dangerous by reason of a design defect, rather than a manufacturing defect. Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 149, 542 P.2d 774 (1975).

The determination of whether a design is defective is made by reference to consumer expectations. We said in Tabert that a product is not reasonably safe (and therefore defective) if it is "unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer." 86 Wash.2d at 154, 542 P.2d 774. We explained that

[i]n determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue.

Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d at 154, 542 P.2d 774.

This passage explicitly contemplates that "the cost and feasibility of eliminating or minimizing the risk" is a factor to be considered in design defect cases. But it is equally explicit that it is a factor which "may be relevant in a particular case." Instruction 12, on the other hand, required the plaintiff to prove beyond the balance of probabilities the existence of an alternative design. Plaintiff argues that the instruction is therefore inconsistent with Tabert and incorrectly states the law.

A majority of the Court of Appeals held that instruction 12 correctly states the law. The court concluded that by introducing a plethora of evidence to show that alternative designs were available, plaintiff assumed the burden of proving the existence of such alternatives. 30 Wash.App. at 730, 638 P.2d 115. Judge Ringold criticizes this reasoning in his dissent. "It is unclear to me just how Connor can increase his burden of proof--the burden of persuasion--merely by going forward with evidence, plethora or not." 30 Wash.App. at 738, 638 P.2d 1150.

We agree with the Court of Appeals that the instruction was appropriate in the present case. Our reasoning, however, differs somewhat from that of the Court of Appeals.

The majority of the court below characterized two later decisions as "elaborating" upon Tabert. We do not agree. In our opinion, these decisions do not modify the holding in Tabert that the availability of alternative designs is a factor which may, not must, be considered in deciding whether a product is unreasonably...